The question may enter your mind: Should I even hire a lawyer, as opposed to just dealing directly with the insurance company and its adjuster? You should know that although the insurance adjuster may seem friendly and cooperative, he or she works for the insurance company that will pay to settle your claim. If the insurance adjuster can persuade you to settle your claim for less than what it is worth, that is good for the insurance company but bad for you. Unlike a lawyer you hire, the insurance company has no legal duty or financial incentive to treat you fairly!
Case in point: A working-class mother had a serious accident with a commercial tractor-trailer rig. She was injured in the accident and her car was so badly damaged that it was useless, both of which posed challenges for this mother of three young children. The very next day, she was visited at home by a representative from the truck driver’s insurance company. The insurance adjuster was very skilled at creating a sense that he was there to help her deal with the problems the accident had caused. After learning that she had no medical insurance, he told her that he believed she would make a good recovery, based on his experience and the way she was able to get around in her home and carry one of her children. Based on this evaluation, he offered her cash to repair her damaged vehicle, and $1,000 to compensate her for the trouble and pain she may have experienced. All she needed to do was accept the cash that day and sign the release, barring her from making any further financial claim.
Although tempted, she called her husband at work. He told her not to accept or sign anything and to call a lawyer immediately. After contacting a lawyer, she eventually found that she had severe injuries to her shoulder and would need a period of treatment and testing to see if she could recover without surgery. Fortunately, she recovered without surgery after receiving the necessary treatment, and was fairly and fully compensated for her months of suffering and damages. Ultimately, she received nearly 25 times what the adjuster wanted her to accept. As you can imagine, this client and her family were immensely pleased with their decision to retain a lawyer rather than deal directly with the insurance company.
The Initial Consultation
When you first call a law firm, your call may be taken by a lawyer, a paralegal, a case manager or an intake specialist. This person will ask you for basic contact information, as well as the details of your accident. Based on your answers, a lawyer will make an initial assessment of your case and may schedule a consultation. If you cannot travel to the law firm, many personal injury lawyers are willing to have the consultation on the telephone, in your home or at the hospital. At our firm, we make every effort to accommodate clients and potential clients with this type of need.
During the initial consultation, you will be asked for details about your accident and your injuries. Because details can be hard to remember, and because some clients feel intimidated or stressed by this meeting, we recommend that clients bring all of the documents they have that are related to the accident — things like police reports, hospital bills, your insurance policy and more. We always do our best to put clients at ease and explain everything as thoroughly as possible, without “legalese.”
Questions the lawyer is likely to ask at your consultation include:
- Did anyone receive a ticket?
- Was a police report made? If so, do you have a copy?
- Did you take photos of the vehicle?
- Did you take photos of your injuries?
- Did you give a statement to police, insurance adjusters or anyone else?
- Were there any witnesses, and if so, did anyone get their contact information?
- How much damage was done to your vehicle?
- What medical treatment have you had thus far?
- What medical treatment, tests or follow-up are currently recommended by your treating physician(s)?
- How are you feeling?
- How are your bills being paid?
- What insurance companies are involved?
Once you have discussed all of this, the lawyer should bring up his or her fees. Most personal injury lawyers work on what is called a contingency-fee basis. This means that you are not required to pay for legal services unless and until the case has been won. The lawyer should have a fee agreement that specifies that he or she will be paid with a percentage of the financial settlement or verdict. The size of that percentage depends on whether the claim is resolved before or after the lawsuit is filed. (It is possible, and common, to resolve claims before filing; see Chapter Four for more.)
This arrangement may sound strange, but it remains popular because it allows lawyers to take strong cases brought by clients who might not be able to afford legal fees otherwise. We believe this is an essential and valuable part of our legal system, providing access to justice for everyone, no matter what their income or background might be.
Choosing the right lawyer can have a substantial effect on the results of your personal injury claim. An experienced personal injury lawyer who meets you and takes the time to listen carefully to the facts of your case can sometimes save you substantial financial and personal hardship. Take the case of a 39-year-old man who was hurt in an auto accident, requiring a cervical spine surgery to correct his injuries. To settle his claim, the insurance company had offered him just $150,000 out of a total available insurance policy of $250,000. What’s more, the man did not realize that he had an additional $750,000 in underinsured motorist insurance, which could cover his treatment if his claim exceeded the $250,000 limit.
The man and his wife consulted several personal injury lawyers to discuss whether they should accept the insurance company’s offer. The first two lawyers they consulted did not delve into all of his medical problems. Importantly, they did not identify the fact that he would likely require future surgeries, which could jeopardize his livelihood as a salesman who traveled thousands of miles a year. Fortunately, the couple sought out the advice of one of the experienced personal injury lawyers who wrote this book. After listening carefully to the prospective client, the lawyer realized that this gentleman was a likely candidate for future surgeries that could threaten his career. The lawyer recommended that he wait for several months before considering any settlement offers, to see whether he needed more treatment or had other problems related to the accident.
As the lawyer suspected, the man ultimately needed two additional cervical spine surgeries, which resulted in permanent physical limitations. He was terminated from his job and ultimately had to accept a job paying significantly less. Based on these lost future earnings and his additional surgeries, the lawyer was able to negotiate a settlement that was over six times the amount of the offer from the defendant’s insurance carrier. In this case, waiting to make a claim until he fully understood his injuries, and hiring an experienced personal injury lawyer, helped the man avoid the financial and medical problems that might have resulted from taking the smaller initial offer.
What Is the Next Step?
When you find the right lawyer, you will sign a contract formally retaining him or her as your lawyer, giving you all of the rights of a client. To get the case started, your lawyer may direct staffers to obtain your medical records, doctors’ notes and medical test results, along with a copy of any accident report and any insurance information or statements the insurer might have recorded. If necessary, the lawyer might also retain a private investigator to find important but elusive information about your case. All of this case development takes time. At our firm, we have found that clients really appreciate being kept informed, whether or not we have anything significant to report. For that reason, we assign specific staffers to update clients regularly about the status of their cases.
In this first stage, your lawyer is working to understand the facts and the strength of your case. After the case is built, your lawyer can begin negotiating with the other side to get you the best possible compensation under the laws of your state and the facts of your individual case. You may end up settling the case outside of court or participating in a full trial. You will learn more about this process, the stages of a lawsuit and your own responsibilities in Chapters Four through Seven.
What if My Case Is Rejected?
Unfortunately, sometimes lawyers must turn down cases. In order for a lawyer to accept a case, he or she must consider many factors, including the severity of your injuries, which parties were at fault, conflicts of interests, legal limitations, time constraints and more. If the firm decides that it cannot handle this case for you, that may not necessarily mean that you do not have a case — just that this firm is not in a position to accept your case.
At our firm, turning down cases is one of our least favorite parts of our work. When we have to tell clients that we cannot take their cases, we do our best to refer them to a local bar association or another lawyer who is better suited to help. We also try to provide them with educational materials, like this book, to help them better understand the system and where their cases may fit into it.